U.S. SUPREME COURT RULES POLICE NEED WARRANT TO SEARCH SMARTPHONE
On June 25, 2014, the United States Supreme Court, in the case of Riley v. California and United States v. Wurie, ruled unanimously (9-0) that “police generally may not, without a warrant, search digital information on a cell phone seized from an individual who has been arrested.” The Court stated that “these two cases raise a common question: whether the police may, without a warrant, search digital information on a cell phone seized from an individual who has been arrested?”
Facts in Riley
In the first case, Riley was stopped for driving with expired tags and it was then learned that his license had been suspended. His car was impounded and searched and they discovered two handguns and he was arrested. “An officer searched Riley incident to the arrest and found items associated with the “Bloods” street gang. He also seized a cell phone from Riley’s pants pocket.”
“The phone was a ‘smart phone,’ a cell phone with a broad range of other functions based on advanced computing capability, large storage capacity, and internet connectivity. The officer accessed information on the phone and noticed that some words (presumably in text messages or a contacts list) were preceded by the letters “CK” – a label that, he believed, stood for “Crip Killers,” a slang term for members of the Bloods gang.”
“Two hours after the arrest, a detective specializing in gangs further examined the contents of the phone. The detective testified that he ‘went through’ Riley’s phone ‘looking for evidence, because. . . gang members will often video themselves with guns or take pictures of themselves with the guns.’”
“The police also found photographs of Riley standing in front of a car they suspected had been involved in a shooting a few weeks earlier. Riley was ultimately charged, in connection with that earlier shooting, with firing at an occupied vehicle, assault with a semiautomatic firearm, and attempted murder.”
“Prior to trial, Riley moved to suppress all evidence that the police had obtained from his cell phone. He contended that the searches of his phone violated the Fourth Amendment, because they had been performed without a warrant and were not otherwise justified by exigent circumstances. The trial court rejected that argument. Riley was convicted on all three counts and received an enhanced sentence of 15 years to life in prison. The California Court of Appeal affirmed.” The California Court denied the petition for review but the U.S. Supreme Court accepted the case.
Facts in Wurie
“A police officer performing routine surveillance observed respondent Brima Wurie make an apparent drug sale from a car. Officers subsequently arrested Wurie and took him to the police station. At the station, the officers seized two cell phones from Wurie’s person.” One was a “flip phone” with less features than a smart phone.
“Five to ten minutes after arriving at the station, the officers noticed that the phone was repeatedly receiving calls from a source identified as ‘my house’ on the phone’s external screen. A few minutes later, they opened the phone and saw a photograph of a woman and a baby set as the phone’s wallpaper.” They traced the phone number to an apartment building, went there and saw a woman who looked like the photo. “They secured the apartment while obtaining a search warrant and, upon later executing the warrant, found and seized 215 grams of crack cocaine, marijuana, drug paraphernalia, a firearm and ammunition, and cash.”
“Wurie was charged with distributing crack cocaine, possessing crack cocaine with intent to distribute, and being a felon in possession of a firearm and ammunition. He moved to suppress the evidence obtained from the search of the apartment, arguing that it was the fruit of an unconstitutional search of his cell phone. The District Court denied the motion. Wurie was convicted on all three counts and sentenced to 262 months in prison.”
“The First Circuit reversed the denial of Wurie’s motion to suppress and vacated Wurie’s convictions for possession with intent to distribute and possession of a firearm as a felon. The court held that cell phones are distinct from other physical possessions that may be searched incident to arrest without a warrant, because of the amount of personal data cell phones contain and the negligible threat they pose to law enforcement interests.” The U.S. Supreme Court granted certiorari.
We reverse the judgment of the California Court of Appeal in [Riley] and remand the case for further proceedings not inconsistent with this opinion. We affirm the judgment of the First Circuit in [Wurie].
Court Discussion
The Court noted that the Fourth Amendment protects against unreasonable searches and seizures and “the ultimate touchstone of the Fourth Amendment is ‘reasonableness.’ Our cases have determined that [w]here a search is undertaken by law enforcement officials to discover evidence of criminal wrongdoing,… reasonableness generally requires the obtaining of a judicial warrant.’” As such, “in the absence of a warrant, a search is reasonable only if it falls within a specific exception to the warrant requirement.”
“In 1914, this Court first acknowledged in dictum “the right on the part of the Government, always recognized under English and American law, to search the person of the accused when legally arrested to discover and seize the fruits or evidences of crime.” Weeks v. United States, 232 U.S. 383,392. Since that time, it has been well accepted that such a search constitutes an exception to the warrant requirement.”
In 1969, the Court, in Chimel v. California, 395 U.S. 752, established the groundwork for most of the existing search incident to arrest doctrine. “When an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape. In addition, it is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee’s person in order to prevent its concealment or destruction. . . .”
Four years later, in United States v. Robinson, 414 U.S. 218 (1973), the Court applied the Chimel analysis in the context of a search of the arrestee’s person. “A police officer had arrested Robinson for driving with a revoked license. The officer conducted a pat down search and felt an object that he could not identify in Robinson’s coat pocket. He removed the object, which turned out to be a crumpled cigarette package, and opened it. Inside were 14 capsules of heroin.”
“The Court of Appeals concluded that the search was unreasonable because Robinson was unlikely to have evidence of the crime of arrest on his person, and because it believed that extracting the cigarette package and opening it could not be justified as part of a protective search for weapons. This Court reversed, rejecting the notion that ‘case-by-case adjudication’ was required to determine ‘whether or not there was present one of the reasons supporting the authority for a search of the person incident to a lawful arrest.’”
“The [Supreme] Court thus concluded that the search of Robinson was reasonable even though there was no concern about the loss of evidence, and the arresting officer had no specific concern that Robinson might be armed. In doing so, the Court did not draw a line between a search of Robinson’s person and a further examination of the cigarette pack found during that search. It merely noted that, ‘[h]aving in the course of a lawful search come upon the crumpled package of cigarettes, [the officer] was entitled to inspect it.’ A few years later, the Court clarified that this exception was limited to ‘personal property… immediately associated with the person of the arrestee.’”
The Court then discussed other exceptions to the warrant requirement and stated, “these cases require us to decide how the search incident to arrest doctrine applies to modern cell phones, which are now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy. A smart phone of the sort taken from Riley was unheard of ten years ago; a significant majority of American adults now own such phones.”
Absent any other guidelines, “we generally determine whether to exempt a given type of search from the warrant requirement ‘by assessing, on the one hand, the degree to which it intrudes upon an individual’s privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.’”
“On the government interest side, Robinson [search of a cigarette package] concluded that the two risks identified in Chimel – harm to officers and destruction of evidence – are present in all custodial arrests. There are no comparable risks when the search is of digital data.”
“Cell phones . . . place vast quantities of personal information literally in the hands of individuals. A search of the information on a cell phone bears little resemblance to the type of brief physical search considered in Robinson. We therefore decline to extend Robinson to searches of data on cell phones, and hold instead that officers must generally secure a warrant before conducting such a search. We therefore decline to extend Robinson to searches of data on cell phones, and hold instead that officers must generally secure a warrant before conducting such a search.”
“Digital data stored on a cell phone cannot itself be used as a weapon to harm an arresting officer or to effectuate the arrestee’s escape. Law enforcement officers remain free to examine the physical aspects of a phone to ensure that it will not be used as a weapon – say, to determine whether there is a razor blade hidden between the phone and its case.”
“The United States and California both suggest that a search of cell phone data might help ensure officer safety in more indirect ways, for example by alerting officers that confederates of the arrestee are headed to the scene. There is undoubtedly a strong government interest in warning officers about such possibilities, but neither the United States nor California offers evidence to suggest that their concerns are based on actual experience.”
The Court also notes that the United States and California focus primarily on preventing the destruction of evidence. “The United States and California argue that information on a cell phone may nevertheless be vulnerable to two types of evidence destruction unique to digital data – remote wiping and data encryption.’” However, the Court states that it has been given little reason to believe that either problem is prevalent.”
In any event, the Court states that “remote wiping can be fully prevented by disconnecting a phone from the network. There are at least two simple ways to do this: First, law enforcement officers can turn the phone off or remove its battery. Second, if they are concerned about encryption or other potential problems, they can leave a phone powered on and place it in an enclosure that isolates the phone from radio waves.”
The Court discusses, in detail, the capabilities of modern cell phones regarding storage of private information and the invasion of privacy which access to the phone creates. “Indeed, a cell phone search would typically expose to the government far more than the most exhaustive search of a house: A phone not only contains in digital form many sensitive records previously found in the home; it also contains a broad array of private information never found in a home in any form….”
HOW THIS AFFECTS YOUR AGENCY
The Court acknowledges the impact this decision might have on law enforcement: “We cannot deny that our decision today will have an impact on the ability of law enforcement to combat crime. Cell phones have become important tools in facilitating coordination and communication among members of criminal enterprises, and can provide valuable incriminating information about dangerous criminals. Privacy comes at a cost.”
However, the Court points out that “our holding, of course, is not that the information on a cell phone is immune from search; it is instead that a warrant is generally required before such a search, even when a cell phone is seized incident to arrest.” The Court also recognizes that exigent circumstances might exist which will allow a warrantless search of the phone.
“Moreover, even though the search incident to arrest exception does not apply to cell phones, other case-specific exceptions may still justify a warrantless search of a particular phone. ‘One well – recognized exception applies when ‘the exigencies of the situation’ make the needs of law enforcement so compelling that [a] warrantless search is objectively reasonable under the Fourth Amendment.’ Such exigencies could include the need to prevent the imminent destruction of evidence in individual cases, to pursue a fleeing suspect, and to assist persons who are seriously injured or are threatened with imminent injury.”
“In light of the availability of the exigent circumstances exception, there is no reason to believe that law enforcement officers will not be able to address some of the more extreme hypotheticals that have been suggested: a suspect texting an accomplice who, it is feared, is preparing to detonate a bomb, or a child abductor who may have information about the child’s location on his cell phone. The defendants here recognize – indeed, they stress – that such fact – specific threats may justify a warrantless search of cell phone data.”
The affect on agencies is summed up by the Court in its statement” “Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple – get a warrant.” Absent exigent circumstances, as a result of these cases, from now on, cell phones which are seized pursuant to a lawful arrest cannot be accessed without a warrant.
As with all legal issues, it is important to secure advice and guidance from your agency’s designated counsel. As always, if you wish to discuss this matter in greater detail, feel free to contact me at (714) 446-1400 or via e-mail atmjm@jones-mayer.com
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